WASHINGTON – A key Republican lawmaker says he believes that special counsel Jack Smith may have made false statements to Congress while testifying about his investigation of President Donald Trump and that the Justice Department should consider prosecuting him. Lawyers for Smith deny the allegation and say he testified truthfully.
Rep. Jim Jordan of Ohio, the chairman of the House Judiciary Committee, referred Smith to the Justice Department for possible prosecution related to closed-door testimony about whether he had obtained records of lawmakers while investigating Trump's efforts to overturn his 2020 presidential election loss.
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The referral, sent Wednesday, centers on a December 2025 exchange in which Smith was asked about subpoenas that prosecutors had issued for the toll records of some Republican lawmakers as part of the investigation. Toll records show the time, date, length of call and phone numbers involved but do not reveal the content of the communication.
“Did the toll records that you requested from the senators, did they include the content of the phone calls?” Smith was asked.
“No,” he said. He again answered no when asked whether the toll records he had requested included the content of text messages.
Jordan, in his referral, says that answer was misleading in light of newly released records from Republican Sen. Chuck Grassley of Iowa showing that Smith had obtained the contents of 44 lawmakers' text messages in a separate subpoena to the National Archives and Records Administration that sought the communications of various Trump advisers and aides.
“The responses provided by Mr. Smith gave the impression that neither Mr. Smith nor his team had access to the content of Members’ privileged text messages," Jordan wrote. “We now know this to be false.”
He said a false statement can encompasses instances in which “the witness provides a half-truth or excludes information necessary to make statements accurate.”
Lawyers for Smith called that a “dangerous theory of criminal liability” that has “no limiting principle and risks ensnaring every witness who testifies before a congressional committee who does not proactively disclose information that is not responsive to a question asked (i.e. every witness).”
Smith's lawyers defend his veracity
In a letter to Jordan and Rep. Jamie Raskin of Maryland, the top Democrat on the Judiciary Committee, Smith's lawyers called his answers “unimpeachably truthful” and noted that he was responding to questions explicitly about toll records, which did not include the contents of any text messages.
“The toll record subpoenas that were the focus of those questions did not call for the content of text messages," wrote Smith's lawyers, Peter Koski and Lanny Breuer. “The questions and answers preceding and following these exchanges also make clear that the focus of the questions was on the toll records subpoenas. Notably, the referral letter does not contest the truthfulness of Mr. Smith's answers.”
Raskin said in his own statement that House Republicans had “embarrassed themselves” with the referral and that Smith answered accurately when asked if the toll records subpoenas sought the content of lawmakers' communications. He said Republicans were faulting Smith for not volunteering information he was not asked.
“Wishing that you had asked different questions while you had the opportunity to examine a witness is not a proper basis for a referral of a witness for criminal prosecution. Congressional Republicans never asked Jack Smith about presidential records,” Raskin wrote. “Not during his 9-hour closed-door testimony or his 4-hour public hearing.”
A criminal referral to the Justice Department from Congress or any other party has no legal authority and does not compel prosecutors to act. But the department under the Trump administration has proved to be eager to investigate and in some cases prosecute foes of the president. Smith is certainly one such adversary, with Trump having called him “deranged” and urging his prosecution.
“During his testimony, Mr. Smith provided truthful, responsive answers and candidly discussed his work as Special Counsel,” Smith's lawyers wrote. “This referral reflects a chilling eagerness to weaponize the justice system by attacking a career, nonpartisan public servant who faithfully and fearlessly performed his duties by following the facts and the law.”
The Justice Department in a statement Wednesday night confirmed receipt of the referral and said it “will investigate all evidence of criminal conduct.”
Smith charged Trump with conspiring to undo the election he lost to Democrat Joe Biden and with hoarding classified documents at his Mar-a-Lago estate in Palm Beach, Florida, after his first term in the White House. Smith abandoned both prosecutions after Trump's election win in November 2024, citing longstanding Justice Department opinions that say sitting presidents cannot face federal indictment.
Smith resigned from the Justice Department in early 2025, 10 days before Trump was inaugurated again.
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Associated Press writer Alanna Durkin Richer contributed to this report.